USA Law and Practice Contributed by: Katelyn Patton, Frankfurt Kurnit Klein & Selz
5.3 Disclosure Requirements The same rules that apply to advertising disclosures generally also apply to advertising online and in social media. The FTC has also issued specific guidance on the use of disclosures online, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” – although this guidance has not been updated for more than a decade. The FTC has also issued specific guidance on the use of disclosures in specific contexts (eg, in connection with the use of influencers). As mentioned in 2.7 Disclosures , although the gen - eral rule for disclosures is that they should be “clear and conspicuous”, the FTC has more recently indi - cated that – for online disclosures to be effective ‒ they should be “unavoidable”. 5.4 Requirements for Use of Social Media Platforms There are no general prohibitions under federal law on the use of social media platforms in the USA – although federal law may limit certain uses by federal employees. Some state laws have been enacted that limit some social media use as well; however, legal challenges to these laws are ongoing. Most social media platforms also do not permit use of their plat - forms by children under the age of 13. 5.5 Influencer Campaigns and Online Reviews 5.5.1 Special Rules/Regulations on Influencer Campaigns The FTC’s Endorsement Guides provide detailed guid - ance on the use of influencers. As a general matter, advertisers should ensure that: • influencers’ statements reflect their honest opin - ions, findings, beliefs and experiences; • influencers’ claims about product performance reflect the generally expected performance of the product; and • influencers clearly and conspicuously disclose material connections they have to the brand that are not reasonably expected by the audience.
lenging ambush marketing in the USA is based on Section 43 (a)(1)(A) of the Lanham Act, which provides a right of action where an advertiser engages in mar - keting that “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person, or as to the origin, sponsorship or approval of his or her goods, services or commercial activities by another person”. There are additional federal and state laws that may be implicated as well, including various state law theories such as breach of contract and/or unfair competition. 5. Social/Digital Media 5.1 Special Rules Applicable to Social Media For the most part, the general rules that govern adver - tising in the USA also govern advertising in online and social media. Some laws have been enacted to gov - ern specific online advertising practices as well (for example, email marketing, which is discussed in 6.1 Email Marketing ). The FTC has also issued guidance on advertising online and on social media, including specific guidance on the use of disclosures online and on the use of influencers and consumer reviews online. 5.2 Liability for Third-Party Content The Communications Decency Act (CDA) provides certain protections for third-party material that is placed online. The CDA provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. Whether a CDA defence is available in the advertising context will often turn on whether the advertiser was in part responsible for the creation or development of the content that is posted. However, the CDA does not provide immunity from certain types of laws, including criminal laws and IP laws. In addition, the Digital Millennium Copyright Act pro - vides immunity for monetary damages for copyright infringement in certain situations, including for content that is posted at the direction of users ‒ provided that certain criteria are met.
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